Flight After a Level‑Two Inquiry in a “Shots‑Fired” Investigation Can Ripen Founded Suspicion into Reasonable Suspicion; Consent‑to‑Frisk Requests Permissible at Level Two — Commentary on People v. Smith (2025 NY Slip Op 04317)

Introduction

People v. Smith is a Fourth Department decision affirming a conviction for two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]). The chief dispute on appeal centered on whether police unlawfully seized the defendant at the inception of their encounter and during their subsequent pursuit, thus tainting the recovery of a handgun the defendant threw while fleeing.

The court held (1) the initial approach was a permissible level‑two De Bour encounter supported by a founded suspicion of criminal activity; (2) during such a level‑two inquiry, officers could lawfully request consent to frisk so long as the request was reasonably related to the investigative purpose; and (3) the defendant’s flight, in the context of a rapid‑response “shots‑fired” investigation and a broadcast suspect description he matched in close spatial and temporal proximity to the scene, ripened the officers’ founded suspicion into reasonable suspicion, justifying pursuit.

A detailed dissent argued the opposite: under binding New York Court of Appeals precedent—including the recent People v. Cleveland (2025)—flight in response to a level‑one or level‑two inquiry, “without more,” cannot create reasonable suspicion to pursue. The dissent would have suppressed the physical evidence, reversed the judgment, and dismissed the indictment.

Summary of the Judgment

The Appellate Division, Fourth Department, affirmed the judgment of conviction. Key holdings:

Initial encounter: Lawful level‑two request for information and consent‑to‑frisk based on founded suspicion—defendant matched a radioed suspect description (Black male, all black clothing) minutes after a “shots‑fired” 911 call, within a few blocks of the scene (De Bour/Hollman framework applied).
Flight and pursuit: The defendant’s flight from the level‑two inquiry elevated founded suspicion to reasonable suspicion, permitting pursuit. The gun he discarded during that lawful pursuit was not the fruit of illegality and was admissible (abandonment doctrine).
Probable cause: Observations during the pursuit (defendant grabbing his waistband, tossing a firearm) supplied probable cause for arrest.
Evidentiary and other claims: The court rejected challenges to legal sufficiency and weight of the evidence; found a police officer’s testimony about civilians overstating the number of shots admissible (and, if error, harmless); rejected prosecutorial misconduct and ineffective assistance claims; found other challenges unpreserved or declined to review in the interest of justice.

Dissent (Ogden, J.): Flight from a level‑two inquiry does not, by itself, supply reasonable suspicion to pursue—particularly where the descriptive information was general. Citing the Court of Appeals’ Cleveland, Holmes, Moore, and May, the dissent would have suppressed the physical evidence and reversed.

Factual and Procedural Background

At 7:43 p.m., an identified citizen called 911 to report shots fired near 204 South Alvord Street in Syracuse; the caller’s vehicle was struck. Dispatch relayed a suspect description: a Black male in black clothing, initially heading northbound on Seward Street and later updated as traveling eastbound on Seward from South Alvord. By 7:50:48 p.m.—roughly seven to eight minutes after the call—two officers on Jasper Street (a continuation of Seward) saw a Black male in all black clothing walking eastbound. They spotlighted him, exited their vehicle, told him he matched the description in a shots‑fired investigation, and asked for consent to check him for weapons. He agreed but fled before the frisk occurred. During the chase, officers observed him grabbing his waistband, throwing an object into a yard (later recovered as a revolver), and scaling a fence.

Minutes later, other officers located discarded black clothing and a white glove nearby and detained a bald Black male wearing shorts and a T‑shirt; the first officer identified him as the same person from Jasper Street. The defendant was arrested and ultimately convicted at trial. His suppression motion—arguing that the stop and pursuit were unlawful, rendering the physical evidence inadmissible—was denied, leading to this appeal.

Analysis

1) Precedents Cited and Their Influence

People v. De Bour, 40 NY2d 210 (1976), and People v. Hollman, 79 NY2d 181 (1992): Establish the four‑level framework governing police‑citizen encounters in New York. The court used De Bour/Hollman to classify the initial contact as a level‑two “common‑law right to inquire,” supported by founded suspicion, and to assess whether a consent‑to‑frisk request remained reasonably related to the inquiry.
People v. Moore, 6 NY3d 496 (2006): Reinforces that founded suspicion permits pointed questioning but not seizure, and that reasonable suspicion is required for pursuit. Moore is invoked both by the majority (to define encounter levels) and the dissent (to argue flight from a level‑two inquiry is insufficient, “without more,” to justify pursuit).
People v. Holmes, 81 NY2d 1056 (1993), and People v. May, 81 NY2d 725 (1992): Core Court of Appeals holdings that “flight alone” or flight with merely equivocal circumstances is insufficient for reasonable suspicion; individuals retain the “right to be let alone” during non‑forcible encounters. Central to the dissent’s critique.
People v. Cleveland, 2025 NY Slip Op 02144 (Ct App 2025): The Court of Appeals recently reiterated that flight from level‑one or level‑two encounters, “without more,” does not create reasonable suspicion for pursuit. The dissent claims the majority’s rule conflicts with Cleveland. The majority did not address Cleveland, relying instead on Fourth Department and earlier Court of Appeals authorities.
People v. Watkins, 221 AD3d 1430 (4th Dept 2023), affd 42 NY3d 1074 (2024): Supports the proposition that flight, in context, can ripen founded suspicion into reasonable suspicion. The Fourth Department (and the Court of Appeals’ affirmance) is used to justify the escalation here, particularly in the violent‑crime, spatio‑temporally close setting.
People v. Gayden, 126 AD3d 1518 (4th Dept 2015), affd 28 NY3d 1035 (2016): Cited for the combination of matching description, proximity, and subsequent conduct (e.g., throwing a gun) supporting probable cause.
People v. Daniels, 147 AD3d 1392 (4th Dept 2017), and People v. Davis, 142 AD3d 1387 (4th Dept 2016): Address abandonment—discarded property during a lawful pursuit is admissible; if the pursuit is lawful, the abandonment is not tainted.
People v. Mercado, 120 AD3d 441 (2d Dept 2014), affd 25 NY3d 936 (2015); People v. Darby, 234 AD3d 708 (2d Dept 2025); People v. Dibble, 43 AD3d 1363 (4th Dept 2007), lv denied 9 NY3d 1032 (2008); People v. Dunbar, 5 NY3d 834 (2005): These cases explain that at level two, officers may request consent to search when the request is reasonably related to the justification for the interference. The majority leans on this line to validate asking for a pat‑frisk in a fresh shots‑fired investigation.
People v. Gonzalez, 55 NY2d 720 (1981): Frames the suppression review standard—appellate courts consider only the hearing record when reviewing suppression rulings.
Other cited authorities—Bleakley (legal sufficiency/weight), Danielson (view of evidence charged), Alfaro (repugnant verdict preservation), Allen (uncharged theory preservation), Crimmins (harmless error), Rivers and Jones (expert or specialized testimony aiding the jury), Baldi (meaningful representation), and Dixon (record‑based limit and CPL 440) —resolve non‑suppression issues and preserve/doctrine questions.

2) The Court’s Legal Reasoning

The majority’s analysis proceeds stepwise under De Bour:

Level‑Two Justification (Founded Suspicion): The officers, acting on a 911 call from an identified citizen and updated dispatches, encountered a Black male in all black clothing, walking eastbound on Jasper Street (the continuation of Seward), within minutes and only a few blocks from a reported shots‑fired incident. No evidence showed other pedestrians matching that general description in the vicinity. These facts—temporal and geographic proximity plus matching description—established a founded suspicion of criminality, permitting a level‑two common‑law inquiry (pointed questions).
Consent‑to‑Frisk Request at Level Two: Because the encounter involved a recent shooting and the officers’ questions focused on weapons, the request to pat‑frisk was “reasonably related in scope to the circumstances” that justified the level‑two interference. Under Mercado/Darby/Dibble/Dunbar, mere request for consent—even to frisk—does not convert the encounter into an unlawful search or a seizure, provided the request is tied to the investigative purpose. The defendant initially agreed, then fled before the frisk occurred.
Flight Ripening Suspicion to Reasonable Suspicion: The majority holds that the defendant’s flight, against the backdrop of a violent crime minutes earlier and a matching description in close proximity, elevated the officers’ founded suspicion to reasonable suspicion, authorizing pursuit. The court cites Watkins, Gayden, Thacker, and Moore/Hollman for the general framework. Although the majority does not invoke it, this step is where Cleveland’s “flight without more” principle potentially creates tension.
Abandonment and Probable Cause: During the lawful pursuit, officers observed the suspect grab his waistband, throw an object into a yard, and scale a fence. Those observations, combined with the subsequent recovery of a revolver in the spot where the object was thrown, supported probable cause to arrest. Under Daniels/Davis, the gun was not fruit of any illegality because the pursuit was lawful; the firearm was abandoned contraband, lawfully recovered.
Remaining Trial and Sentencing Issues: The court found the evidence legally sufficient and the verdict not against the weight of the evidence; various objections (repugnant verdict, “uncharged theory”) were unpreserved; any evidentiary error was harmless; claimed prosecutorial improprieties did not deny due process; counsel rendered meaningful representation; and the sentence was not unduly harsh or severe.

3) The Dissent’s Reasoning and the Cleveland Tension

Justice Ogden’s dissent directly invokes the Court of Appeals’ most recent articulation in People v. Cleveland (2025): flight from a level‑one or level‑two encounter, without additional specific, articulable facts, does not create reasonable suspicion for pursuit. The dissent stresses:

At the moment officers approached, they had only a general description (Black male, black clothing) in a nearby area, which—even if sufficient for level‑two—did not justify seizure.
Flight from that inquiry cannot be the basis for pursuit unless there is “more”; otherwise the “right to be let alone” during non‑forcible encounters is illusory (Holmes, Moore, May).
Because the pursuit was unlawful, the discarded firearm should have been suppressed as fruit of the illegality, requiring reversal and dismissal.

In other words, the dissent reads Cleveland as narrowing the permissible inference from flight, demanding additional pre‑pursuit indicators (e.g., visible bulge, hand movements suggesting a weapon, evasive acts beyond mere flight, or more particularized descriptions) to create reasonable suspicion.

4) Practical Impact and Forward‑Looking Assessment

This decision does two notable things in the Fourth Department:

Reaffirms consent‑to‑frisk requests at level two: Officers investigating recent violent crimes may request a pat‑frisk during a founded‑suspicion inquiry when the request is closely tethered to the reason for the stop (e.g., shots fired). This reflects cross‑departmental alignment with Mercado and Darby.
Positions flight as suspicion‑ripening in violent‑crime contexts: The majority treats headlong flight—when combined with tight temporal/geographic proximity and a broadcast description—as sufficient to ripen founded suspicion into reasonable suspicion, at least where no evidence suggests many others fit the description in the vicinity. This builds on Watkins and Gayden and emphasizes the investigative urgency of active gun calls.

However, the dissent flags an emerging friction with Cleveland’s “flight without more” rule. The critical question for future cases is what counts as the “more.” Smith implies that the “more” can be:

Very close spatio‑temporal proximity to a violent crime;
A suspect matching the broadcast description in a location consistent with reported direction of travel; and
An absence of other apparent matches in the area.

By contrast, Cleveland might require pre‑pursuit, individualized indicia of criminality beyond those factors (e.g., bulge consistent with a weapon, pre‑pursuit waist‑banding, evasive gestures, or a more particularized description). Practitioners should be prepared to litigate whether Smith and Cleveland can be harmonized or whether they represent a narrowing/expansion split that invites further Court of Appeals clarification.

For law enforcement, Smith underscores the importance of:

Articulating the immediacy and geography of the response;
Documenting the specificity of suspect descriptions and the uniqueness of the match at the scene; and
Noting any additional, pre‑pursuit behaviors indicative of criminality (to satisfy Cleveland’s “more”).

For the defense, Smith highlights viable suppression arguments where:

Descriptions are generic and the area populous;
There are other plausible matches nearby; or
There is no pre‑pursuit “more” beyond flight from a level‑two inquiry—invoking Cleveland, Holmes, and Moore.

Complex Concepts Simplified

De Bour Levels:
- Level 1 (Request for information): Objective, credible reason to approach; general questions; person free to walk away.
- Level 2 (Common‑law right to inquire): Founded suspicion of criminality; more pointed questions; still no seizure; person may refuse to cooperate.
- Level 3 (Stop/pursuit): Reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime; permits forcible stop and pursuit.
- Level 4 (Arrest): Probable cause—facts and circumstances that would lead a reasonable person to believe a crime was committed by the suspect.
Founded Suspicion vs. Reasonable Suspicion: “Founded suspicion” supports pointed inquiry but not seizure; “reasonable suspicion” is a stronger, articulable belief permitting a stop/pursuit. Flight can sometimes help “ripen” suspicion, but—per Cleveland—flight from level one or two, without more, is insufficient.
Consent to Frisk at Level Two: Officers may request consent to frisk/search during a level‑two encounter when that request is reasonably related to the purpose of the inquiry (e.g., searching for weapons in an active shots‑fired investigation). The request itself does not transform the encounter into a seizure.
Abandonment Doctrine: If a suspect discards contraband during a lawful police pursuit, the item is considered voluntarily abandoned and admissible. If the pursuit is unlawful, the abandonment may be tainted and the evidence suppressed.
“Repugnant” Verdict: A claim that jury verdicts are legally inconsistent must be objected to before the jury is discharged or it is unpreserved.
Harmless Error: Even if a trial error occurred, reversal is unnecessary if the evidence of guilt is overwhelming and there is no significant probability the error contributed to the verdict.
Meaningful Representation (Ineffective Assistance): New York’s Baldi standard examines counsel’s performance in totality at the time of representation; perfect strategy is not required, only meaningful advocacy.

Conclusion

People v. Smith is a consequential Fourth Department decision on two fronts. First, it confirms that during a level‑two common‑law inquiry prompted by a recent, nearby violent crime, officers may lawfully request consent to frisk where that request is reasonably related to the investigative purpose. Second, it holds that, in this setting, a suspect’s flight can ripen founded suspicion into reasonable suspicion, justifying pursuit; the observation of the suspect discarding a firearm then supplies probable cause, and the weapon is admissible under the abandonment doctrine.

At the same time, the vigorous dissent, grounded in the Court of Appeals’ recent Cleveland decision, underscores a narrowing rule: flight from a level‑one or level‑two encounter “without more” is insufficient to justify pursuit. The majority’s approach—treating violent‑crime proximity and a unique description match as the operative “more”—will likely be explored in future cases to determine whether Smith and Cleveland are reconcilable or whether further high‑court clarification is needed.

Beyond suppression, Smith also provides useful reminders on preservation doctrine, expert or specialized testimony to assist the jury, harmless error review, and the standards for legal sufficiency, weight of the evidence, and meaningful representation. For practitioners, Smith thus stands both as an operational guide for “shots‑fired” investigations and as a signpost of an active doctrinal debate about the permissible inferences from flight in New York’s De Bour framework.